BALIA, J. - (1.) HEARD learned counsel for the petitioner.
(2.) THE Revision is directed against the order dated 6. 3. 1993, passed by the Civil Judge, Chittorgarh affirming the order of Munsif and Judicial Magistrate, Kapasan dated 1. 5. 1989, allowing plaintiff-respondent's application for temporary injunction. THE brief facts of the case are that the plaintiff brought a suit for permanent injunction restraining the defendant from interfering with his right to draw support for the bathroom situated on the plaintiffs property, through the iron angle installed into defendant's wall, which is adjacent to defendant's house and which that bathroom was existing for last more than 20 years. THE suit was filed on 16. 12. 1988 and notices were issued on 16. 12. 1988, which were served on the defendant on 17. 12. 1988. A Commissioner was appointed on 16. 12. 1988 who reported on 17. 12. 1988 that bathroom exists and in his further report dated 22. 12. 1988, he mentioned that the iron angle had been cut down. However, on 22. 12. 1988, the plaintiff moved another application that after filing of the suit, the defendant has removed the angles which has resulted in demolition of the bathroom. He, therefore, prayed that during the pendency of the suit, the defendant may be asked to restore the position as it was existing at the time of filing of the suit lest his right of support may extinguish. The plaintiff as well as the defendant filed affidavits in support of their plea. The trial court after considering the material on record, allowed the plaintiffs application and directed to restore the position as it existed on the date of filing of the suit. Aggrieved with the aforesaid order, the defendant preferred an appeal before the Civil Judge, Chittorgarh, who by the impugned order, dismissed the appeal. Hence this Revision. The principal contention of the petitioner is that the courts- below have seriously erred and have committed illegality and acted with material irregularity in exercise of their jurisdiction by relying on the reports of the Commissioner, based on ex- parte inspection. Having given my anxious-consideration to the contention of the petitioner, the facts and circumstances of the case and the order under Revision, I am unable to accept the same. The Commissioner's reports, notwithstanding, it is admitted case of the parties that the bathroom in question was in existence on 16. 12. 1988, at the time of filing of suit and it was not there on 22. 12. 1988, when the application was moved. Therefore, it is not in dispute that the bathroom has been removed by cutting of the angle supporting it, some time between 16. 12. 1988 and 22. 12. 1988. It may also be noticed that on 16. 12. 1988 when the Commissioner inspected the site, the angles supporting bathroom were present. According to petitioner, he had removed angles before notices were served on him on 17. 12. 1988. From his case, if accepted, it is apparent that angles were removed after inspection by the Commissioner but before service of notices, that is to say, in a short period between 16. 12. 1988 and 17. 12. 1988. This circumstance speaks that though formal notice may not have been served, knowledge about Suit and issuance of notices on the part of defendant cannot be ruled out. Technically, the petitioner may not be guilty of committing any deliberate breach of the court's order but his act do amount to over-reaching the process of law, when the rights of the parties are already sub-judice and notices are issued. In the present case, where the question of existence of easement by prescription is in issue and if the enjoyment of that easement is discontinued for a requisite period, or there are alteration of permanent nature that may result in extinguishment of that right, in these circumstances, it is imperative that right of parties as they existed on the date of filing of suit, are protected. In this view of the matter, in my opinion, the courts below have not committed any error in exercise of their jurisdiction.
(3.) THE Revision is dismissed. .;